1. Applicant's Name: a. Application Date: 18 March 2019 b. Date Received: 20 March 2019 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade honorable. The applicant through counsel seeks relief contending, in effect, no rehabilitative transfer was considered or ordered, as required by AR 635-200, paragraph 1-16c(3), when separating Soldiers under the provisions of AR 635-200, paragraph 14-12b. The applicant contends there is no indication that this requirement was -waived, as permitted by paragraph 1-16d(2). The applicant contends it appears that be regulatory requirement to transfer the Soldier at least once before separation was not considered or ignored. In a records review conducted on 7 July 2021, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's quality of service, to include combat service, the circumstances surrounding the discharge (MST, OBHI, PTSD diagnoses), and prior period of honorable service. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable and changed the separation authority to AR 635-200, paragraph 5-3, and the narrative reason for separation to Secretarial Authority, with a corresponding separation code to JFF. Please see Section 9 of this document for more detail regarding the Board's decision (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Pattern of Misconduct / AR 635-200 / Chapter 14-12b / JKA / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 15 July 2008 c. Separation Facts: Yes (1) Date of Notification of Intent to Separate: 10 June 2008 (2) Basis for Separation: The applicant was informed of the following reasons for her discharge; The applicant received a FG Article 15 on 19 May 2008 for failing to report to her appointed place of duty at the appointed time on divers occasions between (25 March 2008 and 16 April 2008. Her punishment consisted of reduction to PVT / E-1, forfeiture of $673 pay; extra duty for 15 days and restriction to the limits of Fort Hood for 15 days. The applicant received a FG Article 15 on 24 March 2008, for spreading rumors about Command Sergeant Major N.B., engaging in an inappropriate relationship. Her punishment consisted of reduction to PV2 / E-2, extra duty for 14 days. The applicant received a CG Article 15 on 27 September 2007, for disrespect in language toward SSG H., a noncommissioned officer. Her punishment consisted of reduction to PV2 / E-2, forfeiture of $340 pay (suspended), extra duty and restriction for 14 days. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 18 June 2008 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 17 July 2008 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 December 2005 / 3 years b. Age at Enlistment / Education / GT Score: 22 years / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M10, Motor Transport Operator / 5 years, 2 months, 4 days d. Prior Service / Characterizations: ARNG, 12 May 2003 to 1 September 2003 / NA IADT, 2 September 2003 to 18 December 2003 / HD ARNG, 19 December 2003 to 28 December 2005 / HD e. Overseas Service / Combat Service: SWA / Iraq, 6 October 2006 to 18 May 2007 f. Awards and Decorations: ARCOM, NDSM, ICM, GWOTEM, GWOTSM, ASR, CAB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: CG Article 15, dated 27 March 2007, for disrespect in language toward SSG H. a noncommissioned officer, who was then in the execution of his office, by saying to him, "Bye Hodges," or words to that effect (22 October 2006), fail to obey a lawful regulation by wrongfully letting her hair fall below her collar and maintaining a bulky appearance (18 December 2006); without authority, fail to go at the time prescribed to her appointed place of duty x2 (22 February 2007 and 19 March 2007); fail to obey a lawful regulation, by wrongfully having one side of her hair corn rowed, and the other side unfinished, presenting a ragged and unkempt appearance (7 March 2007); having knowledge of a lawful order issued by SSG A.G., to properly utilize her NCO support chain, an order which it was her duty to obey, did, fail to obey the same by wrongfully calling 1SG V., on her cell phone.(7 March 2007); being disrespectful in language toward SGT J.V., a noncommissioned officer, who was then in the execution of his office, by saying to him, "I am going regardless of what you say," or words to that effect (17 March 2007); reduction to PV2 / E-2, forfeiture of $340 pay (suspended), extra duty and restriction for 14 days. On 6 April 2007, the suspension of punishment of forfeiture of $340 pay for one month was vacated for the new offense of having knowledge of a lawful order issued by CPT J.L.K., to have an escort present with her at the PX while she was under restricted privileges, an order which it was her duty to obey, did fail to obey the same (28 March 2007). FG Article 15, dated 24 March 2008, for spreading a rumor that Command Sergeant Major N.B., had engaged in an adulterous and inappropriate relationship with SPC T.M., such conduct being prejudicial to good order and discipline in the armed forces on divers occasions between (1 September 2007 and 15 January 2008); reduction to PV2 / E-2, forfeiture of $755 pay for one month, and extra duty for 14 days. FG Article 15, dated 27 May 2008, without authority, fail to go at the time prescribed to her appointed place of duty x11 (16 April 2008, 15 April 2008, 14 April 2008, 10 April 2008, 4 April 2008, 3 April 2008, 2 April 2008, 1 April 2008, 28 March 2008, 27 March 2008 and 25 March 2008); reduction to PVT / E-1, forfeiture of $673 pay for one month, extra duty for 15 days and restriction to Fort Hood (suspended). The applicant received several negative counseling statements for various acts of misconduct; and being informed of pending separation action. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (two pages); two DD Forms 214; NGB Forms 22; Enlistment Contract (12 pages); AMHRR Documents, including Chapter 14 Discharge packet (99 pages). 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 5 provides for the basic separation of enlisted personnel for the convenience of the government. Paragraph 5-3 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums. Secretarial separation authority is normally exercised on a case-by-case basis. (6) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (7) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (8) Paragraph 14-12b addresses a pattern of misconduct consisting of either discreditable involvement with civilian or military authorities or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army Regulations, the civilian law and time-honored customs and traditions of the Army. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12b, pattern of misconduct. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of "3." 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The applicant through counsel seeks relief contending, in effect, no rehabilitative transfer was considered or ordered, as required by AR 635-200, paragraph 1-16c(3), when separating Soldiers under the provisions of AR 635-200, paragraph 14-12b. The applicant contends there is no indication that this requirement was -waived, as permitted by paragraph 1-16d(2). The applicant contends it appears that be regulatory requirement to transfer the Soldier at least once before separation was not considered or ignored. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES, Review of the VA medical record indicates that the applicant is 100% service connected, 70% for PTSD due to combat and MST. The VA has diagnosed her with Alcoholism; Depression; Sexual Trauma, Military. (2) Did the condition exist or experience occur during military service? YES, Review of the VA medical record indicates that the applicant is 100% service connected, 70% for PTSD due to combat and MST. (3) Does the condition or experience actually excuse or mitigate the discharge? YES, As both of these conditions are associated with avoidant behaviors, there is a nexus between them and the applicant's multiple failures to report. As both of these conditions are associated with difficulty with authority figures, there is a nexus between them and her disrespectfulness toward and spreading rumors about NCOs in her chain of command. (4) Does the condition or experience outweigh the discharge? YES, As both of these conditions are associated with avoidant behaviors, there is a nexus between them and the applicant's multiple failures to report. As both of these conditions are associated with difficulty with authority figures, there is a nexus between them and her disrespectfulness toward and spreading rumors about NCOs in her chain of command. b. Response to Contentions: no rehabilitative transfer was considered or ordered, as required by AR 635-200, paragraph 1-16c(3), when separating Soldiers under the provisions of AR 635-200, paragraph 14-12b, there is no indication that this requirement was waived, as permitted by paragraph 1-16d(2).The applicant contends it appears that be regulatory requirement to transfer the Soldier at least once before separation was not considered or ignored. Memorandum for the Commander of 180th Transportation Battalion paragraph 1. J. describes rehabilitation attempts; the record shows the applicant's first Field Grade Article 15 was in September 2007, her second was 6 months later in March 2008 and third in May 2008, separation was initiated in June 2008 indicating the Chain of Command gave the applicant at least 6 months of continued service to rehabilitate and improve and separated her only after two more incidents of misconduct. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. c. The ADRB determined the discharge is inequitable based on the applicant's quality of service, to include combat service, the circumstances surrounding the discharge (MST, OBHI, PTSD diagnoses), and prior period of honorable service. d. Rationale for Decision: (1) The board voted to change the applicant's characterization of service because the board determined (as outlined in section 9. a.) the applicant did suffer from a Behavioral Health Condition (PTSD) and suffer MST that was mitigating for her misconduct and the requested relief was granted. (2) The board voted to change the reason to Secretarial Authority, because of the conditions surrounding the discharge (MST). (3) Because the characterization and reason were changed, the SPD will change to JFF IAW Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), The RE code will not change as a review of the available medical records shows the applicant has a diagnosis for borderline personality, which is disqualifying for service. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, paragraph 5-3 e. Change SPD / RE Code to: JFF / No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190005030 6